Emergence of an International Environmental Criminal Law?

Abstract

ABSTRACT Environmental misconduct increasingly extends beyond national borders. However, because of the traditional international law of territoriality, few conventional laws and domestic laws criminalize international environmental misconduct effectively. Because this deficiency must be corrected, international conventions and bodies seek suitable ways of penal enforcement. Following a brief introduction, this Article examines some penal provisions in international environmental conventions. Section III sets forth the process of domestic penal legislation of conventions including the way of shaping environmental criminal law. Several different possibilities for punishing international environmental pollution are then discussed. At the domestic level models of and transnationalization of environmental criminal law are presented. Section IV will turn to some recent attempts to establish a supranational regulatory authority empowered to penalize core environmental crimes to protect the earth's shared global and preserve the ecosystem. Finally, some concluding remarks will be formulated together with ideas for the further development of international environmental criminal law. I. INTRODUCTION Transnational ecological connections and the new quality of global threats have led to great activity on the international stage. While the conventional law of the environment is replete with examples of penal provisions, the international community relies for their enforcement upon municipal rather than international institutions. Thus conventions aimed at protecting the global environment call upon state parties to enact legislation to penalize prescribed conduct. Also, agreements concerning pollution of the sea rely principally upon port, coastal or flag states for their enforcement. However, these conventions give the State wide discretion in domestic penal legislation. An environmental criminal law legally binding the citizens of all nations does not exist, nor is there an organization to which such a legislative competence could be granted. At present, the prosecution of environmental crimes which international environmental conventions have introduced is only possible before national courts. Therefore, the internationalization of environmental criminal law, including its standardization and transnationalization, assumes two central themes of this paper. This paper is structured as follows. After sketching some penal provisions in international environmental conventions (below II) a detailed harmonization in domestic penal legislation of conventions will be discussed (below III). The article then turns to some recent attempts to establish a supranational regulatory authority empowered to penalize core environmental crimes to protect the earth's shared global and preserve the ecosystem (below IV). Finally, some concluding remarks will be formulated together with ideas for the further development of international environmental criminal law (below V). II. PENAL PROVISIONS IN INTERNATIONAL ENVIRONMENTAL CONVENTIONS a. Reasons for Criminalizing Environmentally Harmful Conduct A principal reason for criminalizing environmentally harmful conduct in international environmental conventions in general is to deter conduct which is particularly harmful to the environment that is shared on the domestic and international levels. Because it is likely that the internationally shared environment will often be protected even less by private vigilance than its domestic counterpart, the argument for protection by penal sanctions would seem to be stronger than that applicable on the domestic level. Furthermore, some elements of the internationally shared environment -- such as flora and fauna or a life support system for the whole planet(1) may be entirely and forever extinguished because of the commons effect. That effect may be more pronounced when the in question overlaps jurisdictions or is beyond the limits of national jurisdiction. …